BILL ANALYSIS �
SENATE COMMITTEE ON VETERANS AFFAIRS
Senator Ben Hueso, Chair
BILL NO: AB 1410 HEARING DATE: 6/25/13
AUTHOR: Committee on Veterans Affairs
VERSION: As introduced, 3/13/2013
FISCAL: Yes
VOTE: Majority
SUBJECT
Summary
Provides clear statutory authority for the California Military
Department's existing practices regarding its Courts-Martial
Appellate Panel.
DESCRIPTION
Existing law:
1.Provides that the California Military Department (CMD) can
prosecute member Soldiers and Airmen under state authority.
[Military and Veterans (MilVets) Code, �450 et seq.]
2.Establishes three types of CMD courts-martial: summary,
special and general. (MilVets �450)
3.The Courts-Martial Appellate Panel (CMAP) - the CMD's
appellate tribunal - is authorized by a Governor's General
Order rather than by statute.
4.Federal courts-martial appeal authority and procedures are
authorized by statute in the Uniformed Code of Military
Justice (UCMJ), Chapter 47, Title 10, United States Code.
This bill:
1.Provides that:
a. The CMAP shall consist of three justices to hear matters
described in Section 458.1 of the Military and Veterans
Code.
b. The Governor, by general order, shall appoint the three
justices who have experience and training in the field of
military law.
c. The CMAP shall conduct itself as a three-justice court.
d. The CMAP may be convened by the President of the United
States, the Governor, or the Adjutant General.
2. Provides that justices serving on the CMAP:
a. Shall not be liable civilly or criminally for any act or
acts done by them in the performance of his or her duty, as
described in Section 472.
b. Shall be subject to a code of judicial conduct in
accordance with applicable United States Army and the
United States Air Force regulations.
c. Shall sit for four years upon which his or her
appointment shall be terminated or upon acceptance of his
or her resignation by the Adjutant General, whichever
occurs first.
d. Shall be paid at the rate of compensation for a federal
military O-6 (the pay grade for Army and Air Force full
colonels) only while in session.
3.Provides that the CMAP has jurisdiction over the following:
a. Issuance of extraordinary writs relative to all
matters arising under the following:
i)The provisions of the Military and Veterans code.
ii)The Uniform Code of Military Justice.
iii) Any regulation issued by the Governor pertaining to
members of the California active militia.
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iv) Court-martial actions pending before any military
judge of the California Military Department.
b. Adjudicating appeals of sentences of a court-martial
that have been approved by the convening authority, as
described in Section 455.1, and which include:
i)Dismissal, in the case of a commissioned or warrant
officer.
ii)Dishonorable discharge, in the case of an enlisted
man or woman.
iii)Bad-conduct discharge, in the case of an enlisted
man or woman.
iv)Forfeiture of all pay and allowances.
v)Any confinement.
4.Mandates that the practices and procedures of the CMAP follow
the federal Manual for Courts-Martial described in Section 102
and the California Manual for Courts-Martial.
5.Specifies that with regard to any matter adjudicated by the
CMAP, the reported decisions of the United States Court of
Appeals for the Armed Forces shall have direct precedential
authority to such matters unless otherwise directed by the
CMAP.
6.Directs that the precedential decisions of the CMAP shall be
posted in a conspicuous place.
BACKGROUND
California State Militia
The MilVets Code provides for a California state militia, which
contains both an active militia and an unorganized militia, as
follows:
1.The militia of the State consists of the National Guard, State
Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia. (�120)
2.The unorganized militia consists of all persons liable to
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service in the militia, but not members of the National Guard,
the State Military Reserve, or the Naval Militia. (�121)
All able-bodied males between 18 and 45 years old who are not
members of the California Military Department constitute the
unorganized militia of the state. (�122)
3.The Governor may call the unorganized militia for active duty
in case of war, rebellion, insurrection, invasion, tumult,
riot, breach of the peace, public calamity or catastrophe, or
other emergency or imminent danger, or may be called forth for
service under the Constitution and laws of the United States.
(�128)
California Military Department
The California Military Department (CMD or Department) is a
state department located within the executive branch. According
to MilVets Code �51, the CMD is comprised of the following:
" The three components of the active militia: (1) The National Guard,
(2) State Military Reserve, and (3) Naval Militia.
" Two additional elements: (1) The office of the Adjutant General and
(2) the California Cadet Corps.
The Department's eclectic personnel mix includes both paid
employees and volunteers, both uniformed military and civilian
workers, both full-time and part-time, and both federally funded
and state-funded. Uniformed employees are subject to military
law.
Military law
Federal courts-martial are conducted under the Uniform Code of
Military Justice (UCMJ) and the Manual for Courts-Martial (MCM).
Congress enacted the UCMJ, the code of military criminal laws
applicable to all U.S. military members. The MCM contains the
Rules for Courts-Martial (RCM) and Military Rules of Evidence
(MRE). Under this legal framework, military members are subject
to rules, orders, proceedings, and consequences different from
the rights and obligations of their civilian counterparts.
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The UCMJ authorizes three types of courts-martial: (1) summary
court-martial; (2) special court-martial; and (3) general
court-martial. Depending on the severity of the alleged offense,
the accused's commanding officer enjoys great discretion with
respect to the type of court-martial to convene. Generally, each
of the courts-martial provides fundamental constitutional and
procedural rights to the accused, including, but not limited to,
the right to a personal representative or counsel, the
opportunity to confront evidence and witnesses, and the right to
have a decision reviewed by a lawyer or a court of appeals.
Military members convicted by federal courts-martial may appeal
for review by the U.S. Court of Appeals for the Armed Services.
This independent tribunal was established within the UCMJ by act
of Congress -- not by a Presidential executive order. The same
constitutional principles are applicable to the CMAP.
California law expressly adopts federal military statutes, the
UCMJ, MCM, RCM, and MRE as far as they may be applicable to
state military matters. During the first decade of the post-9/11
era, the increasing number of mobilizations and deployments
heightened the need to maintain congruity between federal
military law and state military law. This necessitated updating
California military law to more closely track with the current
federal military law concerning punishments. Many changes had
taken place in the federal UCMJ during the previous 50 years.
The punishment provisions in state law governing courts-martial
in California have not been updated in 50 years, and these
punishment limitations (found in Sections 456, 457, and 458 of
the Military and Veterans Code) were directly traceable back to
the limitations previously contained in the United States Code,
Title 32, Section 327-329.
This led to AB 2579 (S.Runner, 2006), the Legislature's most
recent update of state military legal procedures. Sponsored by
the CMD, that law allows California to use the same standards
and regulations as the federal government under the Uniform Code
of Military Justice (UCMJ) in the punishment for court-martial.
It includes within the powers of special court martial the power
to try commissioned officers and enlisted members of the
organized militia. AB 2579 provides for the following:
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1.The state's summary court-martial punishments meet the very
same federal law/UCMJ standards (i.e., up to 30 days in
confinement).
2.To have the state's special court-martial scheme meet the same
federal law/UCMJ standards for an active duty special
court-martial (but limit confinement to up to 180 days).
3.To have the state's general court-martial punishment scheme
meet the same federal law/UCMJ standards for an active duty
special court-martial (i.e., up to one year confinement, but
add the possibility of a dismissal (for officer cases) and a
dishonorable discharge (for enlisted cases).
COMMENT
Committee staff comments :
The MilVets Code authorizes (1) general courts-martial; (2)
special courts-martial; (3) summary courts-martial; and (d)
courts of inquiry and mandates use of UCMJ standards and
procedures. The CMD uses the state's court-martial process
approximately seven times per year.
Appeals from state courts-martial are managed by the CMAP under
authority flowing from a Governor's General Order (GGO) issued
by Governor Schwarzenegger in 2007. The CMAP would be similar to
the first level of appeals provided for in the federal UCMJ and
MCM. The justices would be appointed by the Governor for their
terms, but convened only as necessary to hear appeals. This bill
will not create a standing court.
Because the federal military appellate court was established by
statute rather than presidential executive order, it is logical
that the state's CMAP should be fully authorized by a
legislative act rather than gubernatorial executive order. But
no explicit statutory authority exists for the CMAP. It is
possible to construe some statutory weight behind the GGO
authorizing CMAP by applying existing MilVets �148. That section
reads in pertinent part:
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The Governor may make rules and regulations in conformity with
this code which shall conform as nearly as practicable to
those governing the United States Army, United States Air
Force and United States Navy. Such rules and regulations shall
have the same force and effect as the provisions of this code.
A finding by the governor that it is impracticable to conform
rules and regulations to those governing the United States
Army, United States Air Force or United States Navy shall be
conclusive and such rules and regulations shall have force and
effect over inconsistent rules 1 regulations, directives,
manuals or practices governing any of the armed forces of the
United States.
However, without explicit statutory authority, the legality of
the CMAP could be called into question by the defense attorney
of a Soldier or Airman convicted by courts-martial on the
grounds that the state failed to provide Servicemembers with a
formalized and legally sufficient appellate process.
Related legislation :
" AB 2579 (S.Runner, Ch. 358, Stats. 2006)
Updates California military law in the area of punishments
available for state courts-martial to make them more
consistent with comparable provisions in federal military
law.
" SB 1025 (Craven, Ch. 90, Stats. 1989)
Adopts the federal UCMJ and Manual for Courts-Martial for
the State of California's application to its active militia,
including the California National Guard.
POSITIONS
Sponsor: Author.
Support: None on file.
Oppose: None on file.
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Analysis by: Wade Cooper Teasdale
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